J-S92041-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BENJAMIN JOHN HATHAWAY, :
:
Appellant : No. 1123 WDA 2016
Appeal from the PCRA Order July 5, 2016
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000501-2003
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BENJAMIN JOHN HATHAWAY, :
:
Appellant : No. 1233 WDA 2016
Appeal from the PCRA Order August 2, 2016
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000501-2003
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 16, 2017
Benjamin John Hathaway (Appellant) appeals pro se from the orders
entered on July 5, 20161 and August 2, 2016,2 which denied his petition filed
1
Docket number 1123 WDA 2016 is an appeal from an order entered on July
5, 2016, which was entered pursuant to Pa.R.Crim.P. 907 to notify Appellant
of the PCRA court’s intention to dismiss the petition without a hearing. An
order entered pursuant to Pa.R.Crim.P. 907 is an interlocutory order and is
*Retired Senior Judge assigned to the Superior Court.
J-S92041-16
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Upon review, we quash the appeal from the order entered July 5, 2016 and
affirm the order entered August 2, 2016.
Generally, a PCRA petition must be filed within one year from the
date a judgment becomes final. There are three exceptions to
this time requirement: (1) interference by government officials
in the presentation of the claim; (2) newly discovered facts; and
(3) an after-recognized constitutional right. When a petitioner
alleges and proves that one of these exceptions is met, the
petition will be considered timely. A PCRA petition invoking one
of these exceptions must be filed within 60 days of the date the
claims could have been presented. The timeliness requirements
of the PCRA are jurisdictional in nature and, accordingly, a PCRA
court cannot hear untimely petitions.
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citations and quotation marks omitted).
On April 14, 2004, Appellant was sentenced to an aggregate term of
ten to 25 years of incarceration. This Court affirmed Appellant’s judgment of
sentence on June 30, 2005, and our Supreme Court denied Appellant’s
petition for allowance of appeal on December 1, 2005. Commonwealth v.
Hathaway, 881 A.2d 833 (Pa. Super. 2005), appeal denied, 889 A.2d 1214
(Pa. 2005). Appellant did not file a writ of certiorari to the United States
Supreme Court; thus, his judgment of sentence became final ninety days
not appealable. See Commonwealth v. Brimage, 580 A.2d 877 n.2 (Pa.
Super. 1990). Accordingly, we quash that appeal.
2
This appeal is docketed at 1233 WDA 2016.
-2-
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later, on March 1, 2006. See U.S. Sup. Ct. Rule 13. Accordingly, Appellant
had until March 1, 2007, to file timely a PCRA petition.3
On June 29, 2016, Appellant filed a motion to “correct illegal sentence-
merger issues.” Motion, 6/29/2016. On July 5, 2016, the PCRA court issued
a memorandum and notice of intent to dismiss the motion without a hearing.
Specifically, the PCRA court treated Appellant’s motion as a PCRA petition 4
and concluded that it was untimely filed and did not plead or prove any
exception set forth in 42 Pa.C.S. § 9545(b). On August 2, 2016, the PCRA
court dismissed Appellant’s petition. Appellant filed timely a notice of
appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
The instant motion, filed on June 29, 2016, is patently untimely. Based
on the foregoing, we conclude the PCRA court had no jurisdiction to
entertain Appellant’s petition unless he pled and offered proof of one or
more of the three statutory exceptions to the time bar. See 42 Pa.C.S.
3
In October 2006, Appellant filed pro se his first PCRA petition. Counsel
was appointed and an amended petition was filed. The PCRA court
concluded an evidentiary hearing was unnecessary and denied Appellant’s
petition for PCRA relief. Appellant timely filed a notice of appeal to this
Court. On August 15, 2008, this Court affirmed the order of the PCRA court.
Commonwealth v. Hathaway, 961 A.2d 1275 (Pa. Super. 2008).
4
“[A] defendant’s motion to correct his illegal sentence was properly
addressed as a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462,
466 (Pa. Super. 2013).
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§ 9545(b)(1). Appellant failed to do so. Accordingly, the PCRA court
properly dismissed his petition.
Order affirmed at docket number 1233 WDA 2016. Appeal quashed at
docket number 1123 WDA 2016. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2017
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Com. v. Hathaway, B.
Combined Opinion